The advent of “no-fault” divorce has given
rise to a system that strips fathers of
their children, accelerates the breakdown of
families, and makes a mockery of the marital
contract.

By Stephen Baskerville

For the moment, while the Federal
Marriage Amendment is moved to a back
burner, it’s a good time to heighten our
awareness of a broader menace. Same-sex
marriage is a symptomatic threat to
families, compared to the more fundamental
effect of “no fault” divorce. “Commentators
miss the point when they oppose homosexual
marriage on the grounds that it would
undermine traditional understandings of
marriage,” writes Bryce Christensen of
Southern Utah University. “It is only
because traditional understandings of
marriage have already been severely
undermined that homosexuals are now laying
claim to it.” Michael McManus of Marriage
Savers writes that “divorce is a far more
grievous blow to marriage than today’s
challenge by gays.”

The Bush administration and Congress have
allocated $150 million annually to promote
“healthy marriages and responsible
fatherhood.” The effectiveness of these
efforts turns on how well they mesh gears
with the underlying realities of the family
crisis. In order to face the bitter truths
about why families are dissolving at such an
alarming rate, we must move from the
precincts of moral exhortation, to take an
analytical look at the mechanics of the
family court system and related legal
agendas.

It is a grievous misconception that an
increase in marital “break downs” warranted
new laws to simplify the divorce process, as
if to minimize a futile expense for an
unavoidable outcome. Under “no-fault”
divorce laws, 80% of divorces are
unilateral. In other words, most “no-fault”
divorces are unilateral, over the objection
of one spouse, who is often committed to
keeping the family together. Further, it is
more often the spouse who is opposed to the
divorce that will be burdened with on-going
legal fees and court actions. Evidence
suggests that those who influenced the new
laws had an ulterior motive which has
developed a system that exploits the
opportunity for professional involvement in
a growing divorce industry. Since “no fault”
divorce opened the court room doors wider,
the market of professional family services
has grown exponentially.
In contradiction to another myth, that
husbands take advantage of the simpler
divorce method, the mother of minor children
is overwhelmingly most often the divorcing
parent. In Divorced Dads: Shattering the
Myths, Arizona State University psychologist
Sanford Braver has shown that at least
two-thirds of divorces are initiated by
women. Moreover, these divorces rarely
involve abandonment, adultery, or violence.
The most common reasons are “growing apart”
or “not feeling loved or appreciated.”

Divorces initiated by women climbed to
more than 70% when no-fault divorce was
introduced, according to Margaret Brinig of
the University of Iowa and Douglas Allen of
Simon Fraser University. Mothers “are more
likely to instigate separation,
despite…evidence that many divorces harm
children.” The bottom line is indeed the
children. After analyzing 21 variables,
Brinig and Allen concluded that “who gets
the children is by far the most important
component in deciding who files for
divorce.”
~~~
The importance of this finding cannot be
overestimated. Political leaders who call
for repeated crackdowns on allegedly
dissolute fathers clearly promote the
assumption that fathers are to blame with
regard to the welfare of children of
divorce. “I believe children should not have
to suffer twice for the decisions of their
parents to divorce,” Senator Mike DeWine
stated on the Senate floor in June 1998;
“once when they decide to divorce, and again
when one of the parents evades the financial
responsibility to care for them.” But most
fathers make no such decision. They are
expelled by a divorce to which they become
obligated without consent.

Family law now allows mothers to walk
away from marriages at any time and take the
children with them. Not only is this
permitted, it is encouraged and rewarded
with financial incentives. Even more
disturbing, in some cases, mothers are
actually pressured by social service
agencies into filing for a divorce that they
don’t want. The Massachusetts News reported
how Heidi Howard was ordered by the state’s
Department of Social Services to divorce her
husband Neil or lose her children, though
DSS acknowledged he had not been violent.
When she refused the social workers seized
her children, including a newborn and
attempted to terminate the Howards’ parental
rights. News reporter Nev Moore says she has
seen hundreds such cases.

The problem runs much deeper than the
existing bias against fathers in custody
decisions. “Washing their hands of judgments
about conduct…the courts assume that all
children should normally live with their
mothers, regardless of how the women have
behaved,” observes Sunday Times columnist
Melanie Phillips. “Yet if a mother has gone
off to live with another man, does that not
indicate a measure of irresponsibility or
instability, not least because by breaking
up the family…she is acting against their
best interests?”

Mothers who separate children from their
fathers are routinely given immediate
custody. Although considered temporary, once
a mother has custody, it cannot be changed
without a lengthy court battle. The sooner
she can establish herself as the sole
caretaker, the more difficult and costly it
is for the father to regain custody.
Further, it is the tendency of a mother who
cuts off the father to use his absence to
embitter the child with false charges
against him, while she delays custody
proceedings, and obstructs the father’s
efforts to see his children. The most common
end result is that she retains sole custody.

As for the father, he is most likely to
discover too late that any restraint in his
effort to regain custody will cost him
dearly. Often only reciprocal belligerence
and aggressive litigation on his part
carries any hope of reward. Astoundingly,
the latest wisdom counsels nervous fathers
that the game is so rigged that their best
chance is not to wait for their day in
court, but to snatch first, then conceal,
obstruct, delay, and so forth. “If you do
not take action,” writes Robert Seidenberg
in The Father’s Emergency Guide to
Divorce-Custody Battle, “your wife will.”
Thus we have the nightmare scenario of a
“race to the trigger” and the pre-emptive
strike reminiscent of nuclear deterrence
strategy. Whoever snatches the children
first wins.
~~~

Far from merely exploiting family
breakdown, domestic relations law has turned
the family into what political scientists
call the game of “prisoners’ dilemma,” in
which only the most trusting marriage can
survive and the emergence of the slightest
marital discord renders not absconding with
the children perilous and even irrational.
Willingly or not, all parents are now
prisoners in this game.

How did all this come about? Under the
assumption that only mutual consent would
precipitate the dissolution of a marriage,
“no fault” laws provided for the removal of
grounds for divorce. Subsequently divorces,
commonly blamed for causing hardship to
wives and children, has increasingly left
husbands vulnerable to desertion and the
confiscation of their children. “No-fault”
divorce is a misnomer for the creation of
what Maggie Gallagher calls in her book The
Abolition of Marriage “unilateral” divorce,
allowing either spouse to end the marriage,
without any agreement or fault by the other.

What’s more alarming is that these laws
were passed while no one was looking; no
clamor to dispense with divorce restrictions
preceded their passage; no public debate was
held in the national media. “The divorce
laws…were reformed by unrepresentative
groups with very particular agendas of their
own and which were not in step with public
opinion,” writes Phillips in her book The
Sex-Change Society. “All the evidence
suggests that public attitudes were
gradually dragged along behind laws that
were generally understood at the time to
mean something very different than what they
subsequently came to represent.”
Attorney Ed Truncellito agrees. In August
2000, he filed suit with the Texas Supreme
Court against the state bar. Truncellito
contends the legislative history of no-fault
divorce law in Texas makes clear that the
law was meant for “uncontested-only” cases.
He insists that “the state bar knew all
along that the no-fault law was being
misapplied, but they covered it up for
financial gain.” Truncellito claims that,
effectively, “no one is married” because the
laws created “unilateral divorce on demand.”
~~~
Dickens’ observation “the one great
principle of the…law is to make business for
itself” couldn’t be more starkly validated.
Nothing in the law requires a judge to grant
the divorcing parent’s initial request to
strip the other parent of his children. A
judge could simply rule that, prima facie,
neither the father nor the children has
committed any infraction that justifies
being forcibly separated and that neither
the mother nor the court has any grounds to
separate them. Yet such rulings are
virtually unheard of. One need not be
cynical to recognize that judges who refused
to grant the request would be denying
earnings to an entourage of lawyers, custody
evaluators, psychologists and psychiatrists,
guardians ad litem, mediators, counselors,
child-support enforcement agents, social
workers, and others – all of whom profit
from the ensuing custody battle and have a
strong say in the promotion of judges.

With all the concern shown for family
breakdown and judicial power, it is
surprising that family advocates and
judicial critics have paid so little
attention to family courts. Without a doubt
they are the arm of the state that reaches
farthest into the private lives of
individuals and families. Though lowest in
the judicial hierarchy, they are the most
powerful. “The family court is the most
powerful branch of the judiciary,” according
to Robert Page, Presiding Judge of the
Family Part of the Superior Court of New
Jersey. According to Judge Page, “the power
of family court judges is almost unlimited.”
Others have commented on their vast power
rather less respectfully. Former Supreme
Court Justice Abe Fortas once characterized
them with the term “kangaroo court.”
Contrary to basic principles of open
government, they generally operate behind
closed doors, often excluding even family
members and leaving no record of their
proceedings.

These bureaucratic courts emerged in the
1960s and 1970s along with the divorce
revolution. Their existence and virtually
every problem they address – divorce,
custody, child abuse, child support
enforcement, even juvenile crime – depend
upon one overriding principle: The removal
of the father as head of the family. When
parental authority functions properly,
family courts have little reason to exist,
since these problems seldom appear among
intact families. While both fathers and
mothers may fall afoul of family court
judges, it is fathers against whom their
enmity is largely directed, because fathers
are their principal rivals.

The judges’ contempt for both fathers and
constitutional rights was openly expressed
by New Jersey municipal court judge Richard
Russell: “Your job is not to become
concerned about the constitutional rights of
the man that you’re violating,” he told his
colleagues at a judges’ training seminar in
1994. “Throw him out on the street, give him
the clothes on his back and tell him, see ya
around…. We don’t have to worry about the
rights.”

While all courts complain of being
“overburdened,” judicial powers and
salaries, like any other service, are
determined by demand. Family court judges
are generally appointed and promoted by
commissions dominated by bar associations
and other professional groups who have an
interest in maximizing the volume of
litigation. Political scientist Herbert
Jacob describes how “the judge occupies a
vital position not only because of his role
in the judicial process but also because of
his control over lucrative patronage
positions.” Jacob cites probate courts,
where positions as estate appraisers “are
generally passed out to the judge’s
political cronies or to persons who can help
his private practice.” The principles are
similar, only in family courts what is
passed out is control over children.
Once the parent “loses custody,” in the
jargon of the court, he can be arrested for
trying to see them outside of authorized
times and places. He can be arrested for
running into his children in a public place
such as the zoo, sporting events, or church.
Additionally, parents are routinely summoned
to court for questioning about their private
lives, which attorney Jed Abraham has
characterized as an “interrogation.” Their
personal documents and homes must be
surrendered to government officials without
warrants. Their children are alienated with
the backing of government officials and then
are required to inform on them.

Despite the constitutional prohibition on
incarceration for debt, a parent can be
jailed without trial for failure to pay not
only child support but the fees of lawyers
and psychotherapists he has not hired. In
these cases, the judge is summoning legally
unimpeachable citizens and ordering them to
write a check or go to jail. And the weapon
he is using to do it is children. If this
systematic bullying by courts and
enforcement agents begins to sound like a
reign of terror, that is precisely how many
now see it.

Aside from countless absurd and bizarre
injustices, the family court system has been
cited as a cause for a growing percentage of
fathers being driven to suicide. In March
2000, Darin White was denied all contact
with his three children, evicted from his
home, and ordered to pay more than twice his
income as child and spousal support, plus
court costs for a divorce he never agreed
to. White hanged himself from a tree. No
evidence of any wrongdoing was presented
against him. White’s fate is increasingly
common. “There is nothing unusual about this
judgment,” the Vancouver Sun quotes former
British Columbia Supreme Court Judge Lloyd
McKenzie, who pointed out that the judge in
White’s case applied the same guidelines
used in the US and other western countries.
Augustine Kposowa of the University of
California Riverside writing in the Journal
of Epidemiology and Community Health
attributes a dramatic increase in the
suicide rate of divorced fathers directly to
family court judgments.
Family law denies rights as basic as free
speech and freedom of the press. In American
jurisdictions it is a crime to criticize
family court judges. Earlier this year,
Kevin Thompson received an order from
Massachusetts Judge Mary Manzi prohibiting
distribution of his book, Exposing the
Corruption in the Massachusetts Family
Courts. Following his congressional
testimony critical of the family courts, Jim
Wagner of the Georgia Council for Children’s
Rights was stripped of custody of his two
children and jailed. “We believe…the court
is attempting to punish Wagner for exposing
the court’s misconduct to a congressional
committee,” said Sonny Burmeister, president
of the Council.

~~~

The divorce industry has, in affect,
rendered marriage a fraudulent contract.
While the dissolution of families affects
the health of the entire society, parents
and especially fathers must demand that
marriage be made an enforceable contract.
“No fault” divorces granted by family courts
also confront church leadership, not only
along lines of morality, but as it touches
on the validity of their ministry. If
marital bonds can be dissolved by government
officials with no grounds or agreement
between the marriage partners, the sanctity
of a wedding ceremony is subject to
disregard. Unless marriage is an enforceable
contract, there is little point in preaching
trust in it. It is not surprising that ever
fewer are willing to marry while the
marriage contract offers no protection of
family, children, homes, or privacy, even to
the extent of life-threatening impositions.

It is one thing to tolerate divorce. It
is another to allow government to impose it
on unwilling spouses. When courts stop
dispensing justice, they must start
dispensing injustice. There is no middle
ground.

EDITOR’S NOTE: Stephen Baskerville, PhD
is president of the American Coalition for
Fathers and Children. For more information,
including how to join those who are working
to restore the family, marriage, and
fatherhood against the ravages of the
divorce industry, contact these links: